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Lawyers issue letter of demand to Eskom, Gordhan over loadshedding


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Lawyers issue letter of demand to Eskom, Gordhan over loadshedding

Public Enterprises Minister Pravin Gordhan
Photo by Creamer Media
Public Enterprises Minister Pravin Gordhan

17th January 2023

By: News24Wire


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Several high-profile lawyers, leaders, and NPOs have threatened Eskom CEO Andre de Ruyter and Public Enterprises Minister Pravin Gordhan with legal action following their failure to provide a stable power supply to the country. 

The letter issued to De Ruyter and Gordhan on Monday, was addressed by Mabuza Attorneys and at least six other law firms - Buthelezi Vilakazi Inc, Makangela Mtungani Inc, Mketsu & Associates Inc, Mphahlele & Masipa Inc, Madlanga & Partners Inc and Ntanga Nkuhlu Inc Attorneys.


The legal team has received the backing of United Democratic Movement leader Bantu Holomisa, Build One SA leader Mmusi Maimane, policy analyst Lukhona Mnguni, the Inkatha Freedom Party, the National Union of Metalworkers and several NPOs.

The legal team said their clients instructed them to demand that loadshedding be stopped with immediate effect and, if not, a full explanation of why the government could not stop it.


Alternatively, they also demanded a specific timetable for when loadshedding would end, and the reasons for the timetable.

They said the state should develop and make publicly available a clear plan to end loadshedding, which must include the resources available to ensure it was realised.

Lastly, the lawyers demanded the 18.65% increase granted by the National Energy Regulator of South Africa (Nersa) should not be implemented, pending the determination of the court challenge their clients intended to institute.

Eskom and Gordhan have until 20 January to respond to the letter to avoid legal action.

"If we are compelled to bring proceedings which we hope to avoid, papers shall be lodged on 23 January 2023 for urgent relief," the lawyers stated.

"It cannot be disputed that the state, as represented by the ministry of public enterprises and Eskom, has not taken any reasonable measures to provide vulnerable South Africans with adequate and reliable energy, whether electricity or any other alternative forms of energy.

"In so doing, the state has contravened its duty to provide energy as imposed by the Constitution, national legislation, and contract."

On Monday afternoon, Eskom announced Stage 4 loadshedding would be implemented at 05:00 to 16:00 from Tuesday, followed by Stage 5 loadshedding at 16:00 to 05:00 from Wednesday.

The embattled power utility said over the course of this week, 14 generators were expected to return to service, helping to ease the pressure on the power system.

Eskom bought an additional 50-million litres of diesel on 6 January 2023.

But the legal team said in its letter that the state had failed to manage the grid responsibly, resulting in material breaches of the constitutional rights of citizens.

"Eskom is an organ of the state. The Constitutional Court has affirmed its role to supply electricity to ensure the economic and social wellbeing of the people.

"It affirmed further that Eskom cannot unilaterally reduce the bulk electricity it supplies. This ruling does not only apply to the supply of electricity to municipalities, but equally to Eskom’s general obligation to transmit and deliver electricity to the nation as a whole."

Since Eskom implemented Stage 6 loadshedding last Wednesday, many small businesses have buckled under its strain, courts have come to a halt, and hospitals, schools, and households have been left without stable electricity supply for eight to 12 hours a day.

According to the lawyers, some of the biggest problems caused by loadshedding and leading to the closure of SMMEs included the lack of internet or Wi-Fi, staff morale, and productivity, ATMs being out of order, loss of planning due to unplanned outages and the inability to trade.

"Small business report that loadshedding is tough on their operations and can be mitigated only by long-term solutions such as the installation of solar panels, and generators, devices which they can ill afford."

Some SMMEs have also reported their equipment had been damaged due to power surges.

Besides its impact on businesses, traffic has also worsened since most traffic lights stopped working during loadshedding, and security concerns were raised.

"As security systems turn off when the power does, it leaves businesses vulnerable to all sorts of attacks, and has even caused businesses to get more insurance coverage," the letter stated.

"We are instructed that the prejudice is due to only the unreliable electricity supply and the protracted power outages occasioned by the ever-increasing number of hours per day that they are left without power."

The lawyers argued loadshedding also disrupted teaching and learning after it was reported some schools had not been built in a way that let the flow of natural light into the classroom.

Therefore, without generators, many schools and pupils were left in the dark.

The legal team argued loadshedding had significantly affected hospitals and healthcare workers. It also contributed to the backlog of some surgical procedures.

"When loadshedding happens, many public hospitals lose the ability to provide proper healthcare services. Even though many do have generators to provide backup power, it is still not a sustainable option.

"Frequent blackouts also affect medical equipment as health equipment has been upgraded and requires an uninterrupted power source, they get damaged as continuous power cuts occur.

"Consumables such as pharmaceuticals, medications, and vaccines that require cold storage are also a concern as they are unable to be kept at the appropriate temperature during loadshedding."

The safety of healthcare workers was also compromised because those who finished late or started in the early hours of the morning were vulnerable to criminals.

Municipalities also battled rampant cable theft, with instances drastically increasing over the festive period due to loadshedding.

Meanwhile, Ramaphosa called an urgent meeting with opposition political leaders on Sunday night as part of the government's plan to address the ongoing Eskom crisis.  

At least three political leaders, who were at the meeting, told News24 that the latest proposals in the government's most recent attempt to address the energy crisis included a plan for National Treasury to take over Eskom's debt.

To improve the generation capacity, which appears to be the significant contributing factor to the current power shortages, Ramaphosa and Gordhan are said to have agreed that Eskom's debt - which is over R400-billion - should be transferred to the National Treasury.

"There was consensus that the debt is moved to Treasury because whenever there is a cashflow problem at Eskom planned maintenance is the one that suffers," Al Jama-Ah's leader, Ganief Hendricks, told News24

He added that while Ramaphosa said it would benefit the country if Treasury took over the debt, Finance Minister Enoch Godongwana would make the final decision.

Hendricks said Gordhan had also proposed that each province have its own grid instead of the entire country relying on only one.

"[H]e came up with a proposal that there must be mini-grids ... so that if one collapses like now, there are another eight that are working," Hendricks said.

The plan was to get about 2 000 municipalities across the country to be grouped into regions and placed in charge over different grids.

Speaking to News24, energy economist Lungile Mashele said the proposal to have nine grids was feasible since numerous countries run on multiple grids.

She was, however, quick to add that the improvement of transmission capabilities was not going to help as the country still struggled with generation capacity.

"You can see many grids, but if there is nothing that will come to that grid, this will not help," said Mashele.

Another shortcoming of the proposal, according to Mashele, was that it could create a situation where those who can generate electricity may transmit it through a possibly privatised grid, and this could lead to uneven power outages among provinces.

Another proposal was that Eskom be awarded a wholesale licence to purchase diesel, two political leaders who preferred to remain anonymous told News24.

They said Gordhan called for closer monitoring of how the power utility buys diesel, and added that the country could not afford to pay more than the retail diesel prices.

In December, the power utility said it had spent R11-billion on diesel in just 10 months and asked for another R20-billion for more diesel.


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